July 2012

By: Jennifer Adams Murphy, Esq.

Internet use has evolved into a necessity in nearly every business in this country. However, with the convenience and efficiency the internet provides, has come employer responsibility and liability of an evolving nature.

It is not particularly surprising that an employer could be sued for sexual harassment arising from claims of tolerance of pornography in email, screen savers or games played on computers by coworkers or supervisors. See O’Leary v. Kaupas, 2012 U.S. Dist LEXIS 531 (N.D. Illinois Jan. 4, 2012). What is much more surprising are cases finding an employer liable to third parties as a result of employee activity on the internet. Cases from other jurisdictions have, for example, allowed claims filed by the mother of an exploited child to proceed against the employer of the individual who uploaded pornographic images of her child at work. Doe v. XYC Corp., 382 N.J. Super. 122, 887 A. 2d 1156 (NJ Super. Ct. App. Div. 2005).

In June, 2012, an Illinois Appellate Court in Lansing v. Southwest Airlines, Co., 2012 Ill. App. LEXIS 458 (1 st Dist. 2012), held that a plaintiff could proceed in a claim against Southwest Airlines for negligent supervision where a Southwest employee had used Southwest’s computers and cell phones to send plaintiff a multitude of harassing email and text messages (over 1000). The appellate court found that immunities afforded internet service providers under the Communications Decency Act, 47 U.S.C. §230, were inapplicable to the claim of negligent supervision asserted by the plaintiff in Lansing. In both Doe and Lansing, the employers allegedly were on notice of the acts which ultimately formed the basis of the plaintiff’s claims.

At a minimum, therefore, the signal to employers from recent cases is to promptly respond to information regarding an employee’s illegal or harassing communications on internet or company cell phones. Additionally, policies regarding electronic communications should be reviewed to ensure appropriate restrictions and clear communication of the company’s right to review and inspect electronic communications. (Note: At the time of publication of this article, the time for filing a petition for leave to appeal in Lansing had not expired).